Law and reality in publishing (seldom the same thing) from the author's side of the slush pile, with occasional forays into politics, military affairs, censorship and the First Amendment, legal theory, and anything else that strikes me as interesting.

21 November 2006

Barrettry

Publishing law ... for the original meaning of "publishing," that is.1 The California Supreme Court's decision in Barrett v. Rosenthal, No. S122953 (Cal. Nov. 20, 2006) has immense implications for publishing, in both the word's original sense (to communicate a defamatory statement to another) and its modern sense (the industry involved in distributing others' written words  primarily, at this time, on paper  for profit).

The Communications Decency Act of 1996 (CDA) was overturned in part in Reno v. ACLU, 521 U.S. 844 (1997), as an unconstitutional restriction on free speech rights. Another part of the statute, however, attempted to preserve (or even enhance) free speech rights on the internet. That part survived, and forms the basis for the California Supreme Court's decision.

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

47 U.S.C. § 230(c)(1). Existing defamation law distinguishes between a "publisher" (who actually makes the defamatory statement) and a "distributor" (who repeats the published statement without actual knowledge or notice of its falsity).2 This distinction was eviscerated in Barrett.

The distinction [between publisher and distributor] proposed by the Court of Appeal, based on rules developed in the post-Gutenberg, precyberspace world, would foster disputes over which category the defendant should occupy. The common law of defamation would provide little guidance.

Slip op. at 16. This conclusion, though, is not compelled; it is merely convenient. The real problem is the mischaracterization of all distributors as somehow being the same, due to some unfortunate (and short-sighted) language in the Restatement (2d) of Torts. The reality is that notice of falsity is a relevant part of the plaintiff's case, but balanced against whether the defendant had done a reasonable investigation and on the plaintiff's status as a public figure. The "distributor" category is merely a shortcut to avoiding trial, not a substantive exception to the elements of defamation. That, however, is beside the point, although it will no doubt get a great deal of publishing exposure in the publishing industry (and through the usual online suspects).

The California Supreme Court did a much more convincing job of using a tautology to ultimately justify its conclusion. In concluding that "user" means "user", without imposing any special technical meaning of the term (which is absent from the text and legislative history of § 230 in any event), the court was in essence accepting that the purpose of a law is to enable others to comport their conduct to its requirements. The CDA does not make technical distinctions; its definitions are so shallow, and its "findings of fact"3 such mere statements of policy and aspirations, that imposing a technical definition of "user" to exclude reposters would undermine its very nature. Too, imposing a technical definition in free speech law is pretty ill-advised to start with. (Yes, that includes "obscene.")

Ultimately, Barrett means that reposting of material on the Internet that one finds elsewhere does not make one potentially liable for defamation. (The California Supreme Court was very careful to note that copyright infringement falls outside the scope of § 230's immunity.) Instead, the person/party liable for defamation  or, presumably, invasion of privacy or intentional infliction of emotional distress, although those theories were not present in Barrett  can be only the originator of the statement or a non-Internet repeater of that statement (presuming that it cannot claim "distributor immunity"). That means that con artists who object to being "outed" no longer have a tenable legal theory of liability with which to go after web-based discussion fora... at least in California and the Fourth Circuit (Maryland, Virginia, and the Carolinas), and probably elsewhere as other jurisdictions adopt Barrett.

The result in Barrett reinforces the concept of the Internet as a "free speech zone," perhaps to the detriment of some victims of alleged "free speech" that is nothing more than scurrilous lies. That, however, is one of the prices of free speech. The counterweight to "bad" speech is more speech, not restrictions on "bad" speech that will inevitably capture "good" speech. (And sometimes those "lies" are more valuable for the puncturing of egos than for their substance... but that's for another time.)

This is one of the (many) instances of redefined terms in the "publishing industry."

The Court cited Rest. (2d) Torts, § 581(1) and Osmond v. EWAP, Inc., 153 Cal. App. 3d 842 (1984) as sources for this distinction (but only after referring to the old hornbook definition in Prosser and Keeton!), ultimately remarking that

The distinction is a practical one. Publishers are ordinarily aware of the content of their copy. It is not reasonable, however, to expect distributors to be familiar with the particulars of every publication they offer for sale. Therefore, only a distributor who is aware of defamatory content shares liability with the publisher.

Slip op. at 9 and n.8. Just how "practical" this distinction has ever been, however, is definitely open to question, particularly since the only known system of faster-than-light communication is the grapevine in the publishing industry... and that's been true for at least a half century.

This is one of the more unfortunate (and misleading) relics of some cramped constitutional law from the first half of the twentieth century. I can imagine no part of government less suited to making a definitive finding of fact than the legislature... and that's without considering the de facto coopting of legislative bodies by special interests. Nonetheless, we're stuck with the term, instead of the more accurate "premises." The rhetorical difference is that a legislature's "findings of fact" attempt to borrow the nonreviewability of a jury's findings of fact (7th Amendment), while the functional role of legislative "findings of fact" is as rebuttable (and falsifiable) premises.

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